One has to wonder whether today’s hearing held by the U.S. Senate Health Education Labor & Pensions Committee on the Obama administration’s effort to eviscerate the accountability provisions of the No Child Left Behind Act is actually going to amount to much. After all, the committee didn’t invite civil rights-oriented reformers who have steadfastly criticized the waiver gambit from the beginning. The committee also isn’t accepting any written testimony from organizations, especially those representing Native communities (who have loudly complained about how American Indian tribes were not consulted by many of the 34 state governments granted waivers as required by both the U.S. Department of Education and by the U.S. Constitution’s provisions granting them sovereign status). And while at least one of the panelists testifying before HELP today — Andy Smarick of Bellwether Education — could cast the waivers in a negative light, Kentucky education czar Terry Holliday, and and New York State Education Commissioner John King are likely to say mostly nice things about the effort. [Update: Katie Haycock of the Education Trust (which has gotten into trouble for its role in helping the administration define proficiency down as well as developing the Plessy v. Ferguson-like Cut the Gap in Half approach that is subjecting poor and minority kids to the soft bigotry of low expectations), is now going to say that she doesn’t like the direction of of the administration’s gambit; EdTrust has also released a report criticizing the effort thus far.]

One really shouldn’t be so surprised by this. After all, as I have noted, the Obama administration’s waiver gambit does what Sen. Tom Harkin (who chairs the committee) and onetime reformer and former Tennessee governor Lamar Alexander (along with traditionalists such as the National Education Association and American Federation of Teachers) have wanted to do for a while: Eviscerate the Adequate Yearly Progress accountability provisions that have spurred a decade of reforms that have led to more kids escaping poverty and prison without having to explain themselves before the public. Few senators seem concerned with the fact that the administration’s gambit takes away real data on school performance (making it more difficult for families from being the lead decision-makers reformers need in order for overhauls to gain traction, and making it more difficult for researchers to do their work), and lets states and mediocre districts off the hook for poorly educating black, Latino, Native and poor white and Asian kids in their care. The fact that the administration is pushing states granted waivers to agree to a meaningless condition to enact “college and career-ready” standards (including Common Core) that it cannot enforce in practice also doesn’t necessarily factor into their thoughts.

Chances are that Harkin is merely holding the hearing to put pressure on the Obama administration to grant his home state of Iowa a waiver after deciding not to do so last year. Considering how arbitrarily the administration has granted the waivers — including allowing Oregon, Michigan and Kansas to ignore No Child’s accountability rules without either having put their proposed in place or rolling them out beyond a pilot stage — one can’t blame Harkin for wanting to do so. Whatever the case, Harkin and his colleagues don’t seem like they are going to ask any hard questions about the efficacy of the process by which the Obama administration is granting the waivers, the consequences of the gambit on the systemic reforms needed to help all children get high-quality education, or whether the waiver gambit is legal in the first place.

Yet Harkin and the rest of his colleagues should be asking a few tough questions about the Obama administration’s waiver gambit. Three of them can only be answered conclusively by Duncan himself. But they which a senator with gumption can and should pose.

The first? Why does the Obama administration have peer review panels in place when it insists on ignoring their concerns and recommendations? As Dropout Nation has noted within the past year, those very review boards have raised significant concerns about many of the plans submitted by states such as New York as well as by the District of Columbia; D.C., one panel was particularly concerned that D.C.’s transition plan to embrace Common Core math and reading standards was not “realistic and of high quality”, and lacked a “high-quality plan” for ensuring that English Language Learners and special ed students could get strong, comprehensive, college[preparatory curricula. Yet the Department of Education granted waivers anyway. Based on these facts, along with other examples of sloppiness (including allowing states to inflate graduation rates — and ruining the efforts spurred by No Child to gain more-accurate data — by counting GEDs toward their calculations), one can easily argue that the administration’s process is just plain half-baked, with no theory of action driving it other than the desire of Duncan and President Barack Obama to put their stamp on federal education policy even at the cost of stalling systemic reform efforts being undertaken on the ground.

The second question: What will Duncan do when those state granted waivers cannot put their promised reforms in place? This is an important question because it is the issue right now. Take New York State, where districts New York City and Buffalo cannot get American Federation of Teachers affiliates to agree to implementing the Empire State’s modest performance-based teacher evaluation system (which only requires the use of Value-Added student test score growth data for only as much as two-fifths of the overall measurement). While Gov. Andrew Cuomo is threatening to both the Big Apple and the AFT to propose a law allowing the state education department unilaterally put the new evaluations in place, the fact that the AFT’s Big Apple and Empire State affiliates are among the most-influential donors to state legislators (including Senate Majority Leader Dean Skelos) makes Cuomo’s threat a rather empty one. Sure the Obama administration can decide to withdraw the waiver. But that would require a level of discipline that the administration has yet to demonstrate in a meaningful way.

Which leads to question number three: What actions will states take to meet their obligations under their respective waivers if traditionalists and others oppose those efforts? This is important because, unlike No Child (which was federal law passed by Congress, and thus, gave reform-minded governors and legislators a tool to leverage in driving their overhauls), the waivers have a questionable legal status. It is also an issue because, like the Obama administration’s signature reform effort, Race to the Top, there is an (implied) emphasis on cooperation with AFT and National Education Association affiliates. Traditionalists know this. So do those conservative reformers who oppose the move by states to embrace Common Core standards. Given that states such as New York and New Mexico developed their proposals without consulting with Native groups and communities as required under the waiver process, there are others who may not be so willing to embrace any proposals submitted, giving both sides allies for their efforts.

These facts makes it easier for both groups to battle against reforms than they could under No Child’s regulations. This is already playing out in New York State with the teacher evaluation effort, and it will happen in other states. If, say, Florida’s legislature passes a law stopping the implementation of Common Core (unlikely to happen), Education Commissioner Tony Bennett can’t do more than try to persuade Gov. Rick Scott to veto the legislation or sue to overturn it in federal court.

Then there’s question four: How can a state help poor and minority kids get high-quality education when the elimination of AYP and subgroup accountability as the levers for holding districts and schools responsible have been replaced with new systems that render those kids invisible? Your editor doesn’t expect either Harkin, Alexander, or Mike Enzi (who helped Harkin on his previous and blessedly ill-fated attempt at reauthorizing No Child) to ask this question. But perhaps Michael Bennet (who was once Denver superintendent) should give it a try. The new systems, as civil rights-based reformers and others have warned, make it harder for everyone in education to know how well children are being taught.

For example, A-to-F grading, which is being used in states such as Indiana and New Mexico appear at first to help families get simpler data on school performance. But it doesn’t work in practice because the underlying formulas allow for schools and districts to hide how poorly they are educating black, Latino and Native kids; a school can hide its wide achievement gaps and still get an A grade if it meets the other categories in the formula. Meanwhile the tactic of putting all minority kids into super-subgroups ends up being a subterfuge because it hides the performance of kids from different backgrounds; a district can, say, do poorly in providing college preparatory curricula to Native Hawaiian children in its schools and still appear to do fine so long as the achievement gaps between groups don’t appear to be so wide. If these systems are complicated for families and researchers, it can’t be any simpler for state education agencies with limited resources to do close monitoring.

Certainly the Obama administration has attempted to put a fig leaf over these problems by telling states to continue using AYP in reporting to the federal government, as well as emphasizing accurate reporting of graduation rates. But given that the waivers no longer require either AYP or accurate graduation rates to be used in practice for accountability purposes, that effort is just plain meaningless. Add in the fact that in some states — most-notably Virginia — the accountability measures, along with proficiency levels on state tests, are secondary in importance to shoddy accreditation processes, and suddenly, the waiver gambit has done little more than create even more mess.

And finally: Will Obama and Duncan finally admit that they simply need to go ahead and push for a reauthorization of No Child instead of continuing this shoddy bit of rulemaking? Certainly the administration has no interest in pursuing reauthorization and neither do House Republicans (especially Speaker John Boehner, who helped craft No Child and isn’t likely interested in allowing House Education and the Workforce Committee Chairman John Kline make his attempt at eviscerating the law). For his part, Kline has made clear that he would rather have several piecemeal laws than the No Child omnibus, while Harkin likely can’t stomach another battle between traditionalists and reformers within the Democratic National Committee similar to that which occurred the last time he tried to push for reauthorization. Your editor had long ago argued for leaving No Child alone as is. But given that the Obama administration has caused this mess, it would make sense that it try to clean it up in a responsible manner by pursuing a reauthorization that strengthens and expands accountability as much as politically possible. Of course, it could just let the waivers lapse over time and allow No Child’s accountability measures to come back into play; this would be preferable. In any case, Obama and Duncan owe our children nothing less than to do something other than continue this waiver gambit.

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